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PROPOSAL:

In order to help ensure that AQMD’s determination of BACT is consistent with the federal definition of LAER, and to ensure that there is adequate public participation and a process for considering public input, it would be beneficial to have a coordination agreement on BACT/LAER determination with EPA. The Home Rule Advisory Group recommends that the proposed BACT/LAER Coordination Agreement be forwarded by the AQMD Governing Board to the Regional Administrator, EPA, Region IX for consideration.

COMMITTEE:

Home Rule Advisory Group, March 26, 1998, Reviewed

RECOMMENDED ACTION:

Forward the attached BACT/LAER Coordination Agreement to EPA, Region IX, for review and approval.

Barry R. Wallerstein, D.Env.
Acting Executive Officer

Background

Under federal law, state law, and AQMD’s rules and regulations, new sources that may emit or have the potential to emit air pollutants must be constructed using Best Available Control Technology (BACT), as specified in the permit to construct. This new source requirement is specified in AQMD Regulation XIII - New Source Review, and also applies to modifications or relocations of an existing source of air pollution. AQMD’s BACT standard is designed to implement both federal Lowest Achievable Emissions Rate (LAER) and state BACT requirements. AQMD’s BACT is therefore, defined in Regulation XIII to be at least as stringent as federal LAER and state BACT.

The AQMD staff publishes BACT requirements for commonly permitted equipment in BACT Guidelines, which are updated from time to time. The BACT Guidelines are meant for guidance only, and do not address each and every permitting situation; nor do they prevent or hinder the application of LAER or BACT to a specific permitting situation.

Issue

The federal EPA, in its oversight capacity, may disagree with the AQMD’s BACT determination on at least two grounds: (1) compliance with the LAER requirement of the Clean Air Act; and (2) compliance with AQMD Regulations XIII and XX, which have been approved by EPA into the State Implementation Plan (SIP) and are therefore enforceable by EPA.

In addition, there has been at least one case, where a manufacturer of technology has approached EPA for a LAER determination not in the context of a permitting situation. In the latter case, EPA’s recognition or approval of the vendor-submitted information tantamounts to a ‘de facto’ LAER determination or determination of ‘Achieved-In-Practice’ technology for all future permitting actions.

While the AQMD staff or the impacted public or business interests may agree or disagree with EPA’s findings, it is important to receive and consider public comments or recommendations on this important issue.

Proposal

The Home Rule Advisory Committee recommends that the attached coordination agreement on BACT/LAER, which has been developed by the Group be approved by the AQMD Governing Board and forwarded to the Regional Administrator, EPA, Region IX, for review and acceptance by EPA. The resulting product from the implementation of this agreement is expected to be beneficial for all parties involved. However, staff is not certain that EPA will endorse the proposed agreement.

Attachments

BACT/LAER Coordination Agreement

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